Geebung v The Queen - [2019] SASCFC 139

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
GEEBUNG v THE QUEEN
[2019] SASCFC 139
Judgment of The Court of Criminal Appeal
(The Honourable Justice Peek, The Honourable Justice Doyle and The Honourable Justice Hughes)
8 November 2019
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - ROBBERY - EVIDENCE
CRIMINAL LAW - EVIDENCE - IDENTIFICATION EVIDENCE - MODES OF IDENTIFICATION - TESTIMONY AS TO BELIEF IN IDENTITY
After a trial by jury, the appellant was convicted of one count of aggravated robbery and one count of trafficking in a large commercial quantity of a controlled drug.
The appellant appealed his conviction for the aggravated armed robbery count. The appellant argued that the verdict of the jury was unreasonable or could not be supported having regard to the evidence. The robbery occurred when the victim stopped at the scene of a car accident to render assistance on a country road. The victim was confronted by the offender who pointed a sawn-off shotgun at him and demanded his vehicle, which he then used to leave the scene.
It was the appellant’s contention on appeal that the evidence of the victim, who was the only eye-witness to give evidence of the offending, was deficient in relation to the appearance of the offender and in its failure to have observed the presence of another person in the appellant’s company at the scene. The appellant argued that the evidence was incapable of satisfying the jury beyond reasonable doubt that the appellant, and not the other person present with the appellant at the scene of the accident, was the offender.
The Crown argued that the cumulative effect of the circumstantial evidence, including forensic evidence, left it open to the jury to conclude beyond reasonable doubt that the appellant robbed the victim of his car at gunpoint.
Held per Hughes J (Peek and Doyle JJ) agreeing:
1. Appeal dismissed.
2. The whole of the evidence was capable of supporting a finding beyond reasonable doubt that the appellant committed the armed robbery.
M v the Queen (1994) 181 CLR 487; R v Klamo (2008) 18 VR 644; R v Place (2015) 124 SASR 467; R v Lowe [2016] SASCFC 118, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"Verdict unsafe or unsatisfactory and not supported by the evidence", "Identification evidence", "Circumstantial evidence"

GEEBUNG v THE QUEEN
[2019] SASCFC 139
Court of Criminal Appeal: Peek, Doyle and Hughes JJ

PEEK J: I would dismiss the appeal. I agree with the reasons of Hughes J.
DOYLE J: I would dismiss the appeal. I agree with the reasons of Hughes J.
HUGHES J: The appellant, Ethan Geebung, was convicted following a trial by jury of one count of aggravated robbery and one count of trafficking in a large commercial quantity of a controlled drug. Both offences occurred on 10 November 2016 in the State’s south-east. The appellant appeals his…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Geebung v The Queen

Details

AGLC: Geebung v The Queen [2019] SASCFC 139
Case: [2019] SASCFC 139
Decision Date: 8 November 2019

CaseChat Overview and Summary

The Full Court of the Supreme Court of South Australia heard an appeal by the appellant, Geebung, against his conviction for aggravated armed robbery. The dispute arose from an incident following a two-vehicle collision where the appellant was alleged to have robbed Mr. Waples, the driver of one of the vehicles. The defence did not tender evidence but relied on the Crown's evidence, including statements made by the appellant to his girlfriend, and submissions made by defence counsel during closing addresses.

The primary legal issue before the court was whether the verdict of the jury was unreasonable or unsupported by the evidence, specifically concerning the identification of the appellant as the perpetrator of the robbery. This involved an assessment of the reliability of the identification evidence provided by Mr. Schriever, the sole eyewitness to the incident, and whether his testimony, particularly regarding the younger man's appearance and ethnicity, was sufficient to establish the appellant's guilt beyond a reasonable doubt.

The court considered Mr. Schriever's evidence, noting that he described two men behind the black utility after the collision. He identified one as the older driver, Mr. Waples, and the other as a "younger man." Mr. Schriever admitted he was not paying close attention to the younger man's complexion or ethnicity, stating he was "pale-ish" and that he "suspected that he may have been of indigenous origin" based more on mannerisms than appearance, and was not "100% sure." The court found that Mr. Schriever's evidence did not provide a sufficiently positive identification of the appellant. The defence's alternative hypothesis, suggesting the younger man was not the appellant, was also considered.

The appeal was allowed, the conviction was quashed, and a new trial was ordered. The court concluded that the evidence, particularly the identification evidence, was not strong enough to support the jury's verdict, and there was a real possibility that the jury had made an error.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The defence tendered no evidence. The defence case emerged to some extent through the evidence of the appellant’s girlfriend, called by the Crown, the appellant’s statements in recorded telephone conversations with his girlfriend in prison, and the alternative hypothesis that the jury was invited to consider during defence counsel’s closing address.The evidence in more detail The allegation of aggravated armed robbery arose as part of the aftermath of a two-vehicle accident at the intersection of Attamurra Road, which is sealed, and Sherwin Road, a dirt road. The closest hamlet is Mil-Lel. At around 10.00 or 10.30 am a black Holden utility and a white farm utility collided. The white farm utility was driven by Mr Waples. Mr Waples’ account of the events was not available to the jury because he had been diagnosed with dementia a few weeks prior to the accident such that any account he gave was unreliable. Photographs tendered at trial showed that as a result of the collision, Mr Waples’ vehicle came to rest wholly on the verge between the road and a field. It was facing in a south-easterly direction, with its bonnet protruding into the field after having penetrated the fence surrounding the field. After impact, the black Holden utility came to a stop facing south-west on the north-bound lane of Attamurra Road. The front half of the vehicle was on the verge facing a field. Its rear half was on the carriageway. The car was facing in the wrong direction. It was a two door vehicle. There was extensive damage to the passenger side of the vehicle from bonnet to tail light and the front passenger door was so damaged it could not be opened. Upon this scene came Mr Schriever, a 64 year old local man who was familiar with the roads both as a land-owner and an officer of National Parks and Wildlife. He was driving north along Attamurra Road when he came upon the black utility which was blocking the lane. He pulled up adjacent the black utility by crossing into the right-hand lane. His evidence was that two men were standing “behind the tailboard” of the black utility, speaking to one another. He distinguished them by reference to their ages. It was common ground that one was the driver of the white utility, Mr Waples, whom Mr Schriever described as the “older bloke”. The other was described as “the younger man”. In his evidence in chief, Mr Schriever was asked to describe the younger man.Q. What about the other man. A. Early 20s I suspect. Q. Can you describe his complexion. A. To be honest I wasn't taking a real lot of notice at the time. I really just asked if they were okay. But from memory he appeared to be - to be honest I'm not sure what - I wasn't taking much notice of his complexion. But certainly - he was probably my colour I guess so what would that be? Pale-ish. Q. What ethnicity did you believe him to be, if you made a view about that. A. When I pulled up I probably wasn't looking at that. As things unfolded I suspected that he may have been of indigenous origin but I'm not 100% sure. Q. Was that in any way based on his complexion. A. Mannerisms more likely I think. Q. And could you describe whether he had any facial hair. A. I think he was unshave - had a few day's growth but I’m not 100% sure.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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